COURT REVERSES DENIAL OF DOMESTIC VIOLENCE RESTRAINING ORDER!
COURT REVERSES DENIAL OF DOMESTIC VIOLENCE RESTRAINING ORDER!
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COURT REVERSES DENIAL OF DOMESTIC VIOLENCE RESTRAINING ORDER!

| Apr 23, 2019 | Firm News

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More drama in the California Family Law Courts involving a stormy romance.  Husband just doesn’t get it!

A wife sought a domestic violence restraining order (DVRO) against her husband for acts specifically violating the temporary restraining order (TRO) the trial court had issued against the husband eight months earlier.

The court denied the DVRO on the ground that a technical violation of a TRO was not an act of domestic violence.

This is what transpired during this case:

On multiple occasions at child exchanges where their interaction was to be limited to communications regarding C., H. urged N. to reconcile with him.

In her declaration in support of the DVRO request, N. stated:

“As the end date of the Order is approaching, H[.] is more aggressive with his constant harassment. He tells me that I should kiss him and hold his hand and that I have responsibilities as his wife. He also tells me that I have demons in me. I cannot walk away because, while he is talking to me, he is either holding our daughter or getting her things one by one from the car. [¶] . . . One example of this behavior took place on or around July 17, 2017. H[.] was withholding our girl and I said ‘please do me a favor and give me the girl.’ He said, ‘no talk to me’ and I said ‘whenever I cared for you, you did not care, I don’t want to talk to you anymore, there is nothing to talk about.’ He continued to keep C[.] from me and asked me to stay and talk to him. He was withholding her [from] me more than ten minutes while I told him I did not want to talk to him.”

At the hearing, N. testified: “[H]e took advantage of the situations and saying he needed to talk to me and that I had obligations towards him as a wife. He gave me presents also to get back together. I told him we have a restraining order, and he  didn’t abide by it.” N. offered into evidence written transcripts of audiotapes of two visitation exchanges at which H. told N. he did not need to abide by the terms of the restraining order; engaged N. in discussing their relationship and pending divorce; asked her for a hug; implied that if N. did not cooperate with him, H. would fight for custody of C.; asked N. why she was not wearing her wedding ring and whether she missed him; suggested they go to joint counseling; and referred to N. as “my love” and asked her to kiss him.

On another occasion, N.’s friend Yasmin, who had driven N. to the visitation exchange, videotaped the incident. H. stalled in returning C. to N. so he could talk to her, and reminded N. that she was his wife. N. said to H., “Just give me the baby. We’re not supposed to be having a conversation.” H. replied, “You are still my wife, and I have the right to be here with you and the baby. I just need to talk to you.” N. repeatedly asked H. to give C. to her, at one point exclaiming, “Give me the girl! Please!? In what way do I have to tell you!?”

N. testified that after one visitation exchange H. followed her, asking “why don’t you stay and talk to me?” H. also asked N. who was waiting for her. N. left in a different direction. In his declaration, H. stated that N. accused him of following her from Santa Ana to Mission Viejo (where they both lived) after visitation, but that he had not been charged with a violation of the TRO because there was no proof.

The TRO provided that N.’s address was confidential and prohibited H. from obtaining her address. N. did not provide her address to H., but nevertheless saw him “around my house.” Yasmin testified she saw H. in his car at N.’s apartment complex. At the hearing, a time-stamped photograph taken by Yasmin of H.’s car leaving N.’s neighborhood was admitted. In her declaration, N. stated: “I no longer feel safe in the home I worked hard to get for my family.”

At one of the child exchanges, H. gave N. a letter. H. admitted writing the letter, despite the TRO’s specific orders that he limit communication with N. to brief, peaceful communication concerning visitation.

H. testified he placed the letter in C.’s diaper bag to “uplift hope for the—just hoping, just praying.” The letter quoted or paraphrased several verses from the Bible regarding overcoming sin and demons, intermixed with H.’s comments regarding N.’s “dirtiness” resulting from her childhood experiences: “God’s Promise: “I will remove you from a nation and bring you to a new land. And then ‘I will spray you with clean water’ [clean water = God’s word in the Bible] and you will heal. Since you were born, your experiences have caused dirtiness and curses on your soul, spirit, and thought and all the idols, statues, human beings and concepts that followed you, etc. I will cleanse you of that filth (Ef[e]c[i]os 5:26–28). I will also place a new spirit inside you; and will remove the heart of stone within your body and will give you a new heart made of flesh. I shall place ‘my Spirit’ inside you and cause you to walk in my statutes of my laws and you will be careful in observing my ordinances (E[z]ekiel 36:24–37)

“Even though your sins and curses are as red as the scarlet, your spirit will be cleaned and will be as white as the snow (Isaias 1:18) “God removes curses, demons, forgotten sins of his children no matter if they are as ‘deep as the ocean’ (Micah 7:19) and forgives their wickedness and the mistakes they have committed. Sinner and forgets them (Jeremias 31:34)” (First brackets in original.)

H. also admitted giving N. a rose on her birthday.

The California Court of appeal applied California Law: Section 6203 defines “‘abuse’” under the DVPA as “any of the following: [¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320. [¶] (b) Abuse is not limited to the actual infliction of physical injury or assault.” (§ 6203, italics added.) The DVPA’s “protective purpose is broad both in its stated intent and its breadth of persons protected.” (Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 863.) The DVPA must be broadly construed in order to accomplish the statute’s purpose. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498.)

The California Court of Appeal reversed and remanded. For purposes of the Domestic Violence Prevention Act, Family Code section 6200 et seq. (DVPA), abuse includes behaviors that were enjoined by a TRO, and is not limited to acts inflicting physical injury. (Fam. Code, § 6203.) (All further statutory references are to the Family Code, unless otherwise noted.)

On remand, California Court of Appeal ordered that the trial court shall make necessary findings regarding whether the acts alleged by the wife actually occurred and, if they did, the court shall enter the DVRO as requested.

See N.T. v. H.T.

N.T. and H.T. separate in the Garden of Eden.

When faced with such circumstances in a family law matter, you need a skilled and knowledgeable attorney by your side protecting all of your interests.  Contact the Law Office of Robert Rodriguez!

Robert Rodriguez has litigated dozens of cases under the California DVPA, as well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.

LEGAL ADVERTISEMENT – Robert Rodriguez Best Divorce & Family Law Attorney in Pleasanton California.